TITLE IV—ENCOURAGING
GOOD FAITH PROFESSIONAL REVIEW ACTIVITIES

(1) The increasing occurrence of
medical malpractice and the need to improve the quality of medical care
have become nationwide problems that warrant greater efforts than those
that can be undertaken by any individual State.

(2) There is a national
need to restrict the ability of incompetent physicians to move from State
to State without disclosure or discovery of the physician’s previous
damaging or incompetent performance.

(3) This nationwide
problem can be remedied through effective professional peer review.

PART A—PROMOTION OF
PROFESSIONAL REVIEW ACTIVITIES

(1)
Limitation on damages for professional review
actions.—If a professional review action (as defined
in section 431(9)) of a professional review body meets all the standards
specified in section 412(a), except as provided in subsection (b)—

(A) the professional review
body,

(B) any person acting as
a member or staff to the body,

(C) any person under a
contract or other formal agreement with the body, and

(D) any person who
participates with or assists the body with respect to the action,

shall not be liable in damages under any law of the United
States or of any State (or political subdivision thereof) with respect to
the action. The preceding sentence shall not apply to damages under any law
of the United States or any State relating to the civil rights of any
person or persons, including the Civil Rights Act of 1964, 42 U.S.C. 2000e,
et seq. and the Civil Rights Acts, 42 U.S.C. 1981, et seq. Nothing in this
paragraph shall prevent the United States or any Attorney General of a
State from bringing an action, including an action under section 4C of the
Clayton Act, 15 U.S.C. 15C[185], where such an action
is otherwise authorized.

(2) Protection
for those providing information to professional review
bodies.—Notwithstanding any other provision of law, no
person (whether as a witness or otherwise) providing information to a
professional review body regarding the competence or professional conduct
of a physician shall be held, by reason of having provided such
information, to be liable in damages under any law of the United States or
of any State (or political subdivision thereof) unless such information is
false and the person providing it knew that such information was
false.

(b) Exception.—If the
Secretary has reason to believe that a health care entity has failed to
report information in accordance with section 423(a), the Secretary shall
conduct an investigation. If, after providing notice of noncompliance, an
opportunity to correct the noncompliance, and an opportunity for a hearing,
the Secretary determines that a health care entity has failed substantially
to report information in accordance with section 423(a), the Secretary
shall publish the name of the entity in the Federal Register. The
protections of subsection (a)(1) shall not apply to an entity the name of
which is published in the Federal Register under the previous sentence with
respect to professional review actions of the entity commenced during the
3-year period beginning 30 days after the date of publication of the
name.

(1)
Professional review actions taken on or after october 14,
1989.—Except as provided in paragraph (2), subsection
(a) shall apply to State laws in a State only for professional review
actions commenced on or after October 14, 1989.

(2)
Exceptions.—

(A)State
early opt-in.—Subsection (a) shall apply to State laws
in a State for actions commenced before October 14, 1989, if the State by
legislation elects such treatment.

(B) Effective
date of election.—An election under State law is not
effective, for purposes of,[186] for actions commenced before the effective
date of the State law, which may not be earlier than the date of the
enactment of that law.

(a) In General.—For
purposes of the protection set forth in section 411(a), a professional
review action must be taken—

(1) in the reasonable belief that
the action was in the furtherance of quality health care,

(2) after a reasonable
effort to obtain the facts of the matter,

(3) after adequate notice
and hearing procedures are afforded to the physician involved or after such
other procedures as are fair to the physician under the circumstances,
and

(4) in the reasonable
belief that the action was warranted by the facts known after such
reasonable effort to obtain facts and after meeting the requirement of
paragraph (3).

A professional review action shall be presumed to have met
the preceding standards necessary for the protection set out in section
411(a) unless the presumption is rebutted by a preponderance of the
evidence.

(b)Adequate Notice and
Hearing.—A health care entity is deemed to have met
the adequate notice and hearing requirement of subsection (a)(3) with
respect to a physician if the following conditions are met (or are waived
voluntarily by the physician):

(1) Notice of proposed
action.—The physician has been given notice
stating—

(A)(i) that a professional review
action has been proposed to be taken against the physician,

(ii) reasons for the proposed
action,

(B)(i) that
the physician has the right to request a hearing on the proposed
action,

(ii) any time limit (of not less
than 30 days) within which to request such a hearing, and

(C) a summary
of the rights in the hearing under paragraph (3).

(2)
Notice of hearing.—If a hearing is requested on a
timely basis under paragraph (1)(B), the physician involved must be given
notice stating—

(A) the place, time, and date, of
the hearing, which date shall not be less than 30 days after the date of
the notice, and

(B) a list of the
witnesses (if any) expected to testify at the hearing on behalf of the
professional review body.

(3)
Conduct of hearing and notice.—If a hearing is
requested on a timely basis under paragraph (1)(B)—

(A) subject to subparagraph (B), the
hearing shall be held (as determined by the health care
entity)—

(i) before an arbitrator mutually
acceptable to the physician and the health care entity,

(ii) before a hearing
officer who is appointed by the entity and who is not in direct economic
competition with the physician involved, or

(iii) before a panel of
individuals who are appointed by the entity and are not in direct economic
competition with the physician involved;

(B) the right
to the hearing may be forfeited if the physician fails, without good cause,
to appear;

(C) in the hearing the
physician involved has the right—

(i) to representation by an attorney
or other person of the physician’s choice,

(ii) to have a record
made of the proceedings, copies of which may be obtained by the physician
upon payment of any reasonable charges associated with the preparation
thereof,

(iii) to call, examine,
and cross-examine witnesses,

(iv) to present evidence
determined to be relevant by the hearing officer, regardless of its
admissibility in a court of law, and

(v) to submit a written
statement at the close of the hearing; and

(D) upon
completion of the hearing, the physician involved has the
right—

(i) to receive the written
recommendation of the arbitrator, officer, or panel, including a statement
of the basis for the recommendations, and

(ii) to receive a written
decision of the health care entity, including a statement of the basis for
the decision.

A professional review body’s
failure to meet the conditions described in this subsection shall not, in
itself, constitute failure to meet the standards of subsection
(a)(3).

(c) Adequate Procedures in Investigations or
Health Emergencies.—For purposes of section 411(a),
nothing in this section shall be construed as—

(1) requiring the procedures
referred to in subsection (a)(3)—

(A) where there is no adverse
professional review action taken, or

(B) in the case of a
suspension or restriction of clinical privileges, for a period of not
longer than 14 days, during which an investigation is being conducted to
determine the need for a professional review action; or

(2) precluding
an immediate suspension or restriction of clinical privileges, subject to
subsequent notice and hearing or other adequate procedures, where the
failure to take such an action may result in an imminent danger to the
health of any individual.

In any suit brought against a defendant, to the extent that a
defendant has met the standards set forth under section 412(a) and the
defendant substantially prevails, the court shall, at the conclusion of the
action, award to a substantially prevailing party defending against any
such claim the cost of the suit attributable to such claim, including a
reasonable attorney’s fee, if the claim, or the claimant’s
conduct during the litigation of the claim, was frivolous, unreasonable,
without foundation, or in bad faith. For the purposes of this section, a
defendant shall not be considered to have substantially prevailed when the
plaintiff obtains an award for damages or permanent injunctive or
declaratory relief.

(a) In General.—Except as
specifically provided in this part, nothing in this part shall be construed
as changing the liabilities or immunities under law or as preempting or
overriding any State law which provides incentives, immunities, or
protection for those engaged in a professional review action that is in
addition to or greater than that provided by this part.

(b) Scope of Clinical
Privileges.—Nothing in this part shall be construed as
requiring health care entities to provide clinical privileges to any or all
classes or types of physicians or other licensed health care
practitioners.

(c) Treatment of Nurses and Other
Practitioners.—Nothing in this part shall be construed
as affecting, or modifying any provision of Federal or State law, with
respect to activities of professional review bodies regarding nurses, other
licensed health care practitioners, or other health professionals who are
not physicians.

(d) Treatment of Patient Malpractice
Claims.—Nothing in this title shall be construed as
affecting in any manner the rights and remedies afforded patients under any
provision of Federal or State law to seek redress for any harm or injury
suffered as a result of negligent treatment or care by any physician,
health care practitioner, or health care entity, or as limiting any
defenses or immunities available to any physician, health care
practitioner, or health care entity.

PART B—REPORTING OF
INFORMATION

(a) In General.—Each
entity (including an insurance company) which makes payment under a policy
of insurance, self-insurance, or otherwise in settlement (or partial
settlement) of, or in satisfaction of a judgment in, a medical malpractice
action or claim shall report, in accordance with section 424, information
respecting the payment and circumstances thereof.

(b) Information To Be
Reported.—The information to be reported under
subsection (a) includes—

(1) the name of any physician or
licensed health care practitioner for whose benefit the payment is
made,

(2) the amount of the
payment,

(3) the name (if known)
of any hospital with which the physician or practitioner is affiliated or
associated,

(4) a description of the
acts or omissions and injuries or illnesses upon which the action or claim
was based, and

(5) such other
information as the Secretary determines is required for appropriate
interpretation of information reported under this section.

(c) Sanctions for Failure to
Report.—Any entity that fails to report information on
a payment required to be reported under this section shall be subject to a
civil money penalty of not more than $10,000 for each such payment
involved. Such penalty shall be imposed and collected in the same manner as
civil money penalties under subsection (a) of section 1128A of the Social
Security Act are imposed and collected under that section.

(d) Report on Treatment of Small
Payments.—The Secretary shall study and report to
Congress, not later than two years after the date of the enactment of this
Act, on whether information respecting small payments should continue to be
required to be reported under subsection (a) and whether information
respecting all claims made concerning a medical malpractice action should
be required to be reported under such subsection.

SEC. 422.[42 U.S.C.
11132] REPORTING OF SANCTIONS TAKEN BY
BOARDS OF MEDICAL EXAMINERS.

(A) which revokes or suspends (or
otherwise restricts) a physician’s license or censures, reprimands,
or places on probation a physician, for reasons relating to the
physician’s professional competence or professional conduct,
or

(B) to which a
physician’s license is surrendered,

shall report, in accordance with section 424, the
information described in paragraph (2).

(2) Information
to be reported.—The information to be reported under
paragraph (1) is—

(A) the name of the physician
involved,

(B) a description of the
acts or omissions or other reasons (if known) for the revocation,
suspension, or surrender of license, and

(C) such other
information respecting the circumstances of the action or surrender as the
Secretary deems appropriate.

(b) Failure to
Report.—If, after notice of noncompliance and
providing opportunity to correct noncompliance, the Secretary determines
that a Board of Medical Examiners has failed to report information in
accordance with subsection (a), the Secretary shall designate another
qualified entity for the reporting of information under section 423.

(A) takes a professional review
action that adversely affects the clinical privileges of a physician for a
period longer than 30 days;

(B) accepts the surrender
of clinical privileges of a physician—

(i) while the physician is under an
investigation by the entity relating to possible incompetence or improper
professional conduct, or

(ii) in return for not
conducting such an investigation or proceeding; or

(C) in the
case of such an entity which is a professional society, takes a
professional review action which adversely affects the membership of a
physician in the society,

shall report to the Board of Medical Examiners, in
accordance with section 424(a), the information described in paragraph
(3).

(2) Permissive
reporting on other licensed health care
practitioners.—A health care entity may report to the
Board of Medical Examiners, in accordance with section 424(a), the
information described in paragraph (3) in the case of a licensed health
care practitioner who is not a physician, if the entity would be required
to report such information under paragraph (1) with respect to the
practitioner if the practitioner were a physician.

(3) Information
to be reported.—The information to be reported under
this subsection is—

(A) the name of the physician or
practitioner involved,

(B) a description of the
acts or omissions or other reasons for the action or, if known, for the
surrender, and

(C) such other
information respecting the circumstances of the action or surrender as the
Secretary deems appropriate.

(b) Reporting by Board of Medical
Examiners.—Each Board of Medical Examiners shall
report, in accordance with section 424, the information reported to it
under subsection (a) and known instances of a health care entity’s
failure to report information under subsection (a)(1).

(1)
Health care entities.—A health care entity that fails
substantially to meet the requirement of subsection (a)(1) shall lose the
protections of section 411(a)(1) if the Secretary publishes the name of the
entity under section 411(b).

(2) Board of
medical examiners.—If, after notice of noncompliance
and providing an opportunity to correct noncompliance, the Secretary
determines that a Board of Medical Examiners has failed to report
information in accordance with subsection (b), the Secretary shall
designate another qualified entity for the reporting of information under
subsection (b).

(d) References to Board of Medical
Examiners.—Any reference in this part to a Board of
Medical Examiners includes, in the case of a Board in a State that fails to
meet the reporting requirements of section 422(a) or subsection (b), a
reference to such other qualified entity as the Secretary
designates.

(a) Timing and Form.—The
information required to be reported under sections 421, 422(a), and 423
shall be reported regularly (but not less often than monthly) and in such
form and manner as the Secretary prescribes. Such information shall first
be required to be reported on a date (not later than one year after the
date of the enactment of this Act) specified by the Secretary.

(b)To Whom Reported.—The
information required to be reported under sections 421, 422(a), and 423(b)
shall be reported to the Secretary, or, in the Secretary’s
discretion, to an appropriate private or public agency which has made
suitable arrangements with the Secretary with respect to receipt, storage,
protection of confidentiality, and dissemination of the information under
this part.

(1)
Malpractice payments.—Information required to be
reported under section 421 shall also be reported to the appropriate State
licensing board (or boards) in the State in which the medical malpractice
claim arose.

(2) Reporting
to other licensing boards.—Information required to be
reported under section 423(b) shall also be reported to the appropriate
State licensing board in the State in which the health care entity is
located if it is not otherwise reported to such board under subsection
(b).

(a) In General.—It is the
duty of each hospital to request from the Secretary (or the agency
designated under section 424(b)), on and after the date information is
first required to be reported under section 424(a))[187]—

(1) at the time a physician or
licensed health care practitioner applies to be on the medical staff
(courtesy or otherwise) of, or for clinical privileges at, the hospital,
information reported under this part concerning the physician or
practitioner, and

(2) once every 2 years
information reported under this part concerning any physician or such
practitioner who is on the medical staff (courtesy or otherwise) of, or has
been granted clinical privileges at, the hospital.

A hospital may request such information at other
times.

(b) Failure to Obtain
Information.—With respect to a medical malpractice
action, a hospital which does not request information respecting a
physician or practitioner as required under subsection (a) is presumed to
have knowledge of any information reported under this part to the Secretary
with respect to the physician or practitioner.

(c) Reliance on Information
Provided.—Each hospital may rely upon information
provided to the hospital under this title and shall not be held liable for
such reliance in the absence of the hospital’s knowledge that the
information provided was false.

With respect to the information reported to the Secretary (or the
agency designated under section 424(b)) under this part respecting a
physician or other licensed health care practitioner, the Secretary shall,
by regulation, provide for—

(1) disclosure of the information,
upon request, to the physician or practitioner, and

(a) Providing Licensing Boards and Other
Health Care Entities With Access to Information.—The
Secretary (or the agency designated under section 424(b)) shall, upon
request, provide information reported under this part with respect to a
physician or other licensed health care practitioner to State licensing
boards, to hospitals, and to other health care entities (including health
maintenance organizations) that have entered (or may be entering) into an
employment or affiliation relationship with the physician or practitioner
or to which the physician or practitioner has applied for clinical
privileges or appointment to the medical staff.

(1)
In general.—Information reported under this part is
considered confidential and shall not be disclosed (other than to the
physician or practitioner involved) except with respect to professional
review activity, as necessary to carry out subsections (b) and (c) of
section 425 (as specified in regulations by the Secretary), or in
accordance with regulations of the Secretary promulgated pursuant to
subsection (a). Nothing in this subsection shall prevent the disclosure of
such information by a party which is otherwise authorized, under applicable
State law, to make such disclosure. Information reported under this part
that is in a form that does not permit the identification of any particular
health care entity, physician, other health care practitioner, or patient
shall not be considered confidential. The Secretary (or the agency
designated under section 424(b)), on application by any person, shall
prepare such information in such form and shall disclose such information
in such form.

(2) Penalty for
violations.—Any person who violates paragraph (1)
shall be subject to a civil money penalty of not more than $10,000 for each
such violation involved. Such penalty shall be imposed and collected in the
same manner as civil money penalties under subsection (a) of section 1128A
of the Social Security Act are imposed and collected under that
section.

(3) Use of
information.—Subject to paragraph (1), information
provided under section 425 and subsection (a) is intended to be used solely
with respect to activities in the furtherance of the quality of health
care.

(4)
Fees.—The Secretary may establish or approve
reasonable fees for the disclosure of information under this section or
section 426. The amount of such a fee may not exceed the costs of
processing the requests for disclosure and of providing such information.
Such fees shall be available to the Secretary (or, in the Secretary’s
discretion, to the agency designated under section 424(b)) to cover such
costs.

(c) Relief From Liability for
Reporting.—No person or entity (including the agency
designated under section 424(b)) shall be held liable in any civil action
with respect to any report made under this part (including information
provided under subsection (a) without knowledge of the falsity of the
information contained in the report.

(d) Interpretation of
Information.—In interpreting information reported
under this part, a payment in settlement of a medical malpractice action or
claim shall not be construed as creating a presumption that medical
malpractice has occurred.

PART C—DEFINITIONS
AND REPORTS

(1) The term “adversely
affecting” includes reducing, restricting, suspending, revoking,
denying, or failing to renew clinical privileges or membership in a health
care entity.

(2) The term “Board
of Medical Examiners” includes a body comparable to such a Board (as
determined by the State) with responsibility for the licensing of
physicians and also includes a subdivision of such a Board or body.

(3) The term
“clinical privileges” includes privileges, membership on the
medical staff, and the other circumstances pertaining to the furnishing of
medical care under which a physician or other licensed health care
practitioner is permitted to furnish such care by a health care
entity.

(4)(A) The term
“health care entity” means—

(i) a hospital that is licensed to
provide health care services by the State in which it is located,

(ii) an entity (including
a health maintenance organization or group medical practice) that provides
health care services and that follows a formal peer review process for the
purpose of furthering quality health care (as determined under regulations
of the Secretary), and

(iii) subject to
subparagraph (B), a professional society (or committee thereof) of
physicians or other licensed health care practitioners that follows a
formal peer review process for the purpose of furthering quality health
care (as determined under regulations of the Secretary).

(B) The term
“health care entity” does not include a professional society
(or committee thereof) if, within the previous 5 years, the society has
been found by the Federal Trade Commission or any court to have engaged in
any anti-competitive practice which had the effect of restricting the
practice of licensed health care practitioners.

(5)
The term “hospital” means an entity described in paragraphs
(1) and (7) of section 1861(e) of the Social Security Act.

(6) The terms
“licensed health care practitioner” and
“practitioner” mean, with respect to a State, an individual
(other than a physician) who is licensed or otherwise authorized by the
State to provide health care services.

(7) The term
“medical malpractice action or claim” means a written claim or
demand for payment based on a health care provider’s furnishing (or
failure to furnish) health care services, and includes the filing of a
cause of action, based on the law of tort, brought in any court of any
State or the United States seeking monetary damages.

(8) The term
“physician” means a doctor of medicine or osteopathy or a
doctor of dental surgery or medical dentistry legally authorized to
practice medicine and surgery or dentistry by a State (or any individual
who, without authority holds himself or herself out to be so
authorized).

(9) The term
“professional review action” means an action or recommendation
of a professional review body which is taken or made in the conduct of
professional review activity, which is based on the competence or
professional conduct of an individual physician (which conduct affects or
could affect adversely the health or welfare of a patient or patients), and
which affects (or may affect) adversely the clinical privileges, or
membership in a professional society, of the physician. Such term includes
a formal decision of a professional review body not to take an action or
make a recommendation described in the previous sentence and also includes
professional review activities relating to a professional review action. In
this title, an action is not considered to be based on the competence or
professional conduct of a physician if the action is primarily based
on—

(A) the physician’s
association, or lack of association, with a professional society or
association,

(B) the physician’s
fees or the physician’s advertising or engaging in other competitive
acts intended to solicit or retain business,

(C) the physician’s
participation in prepaid group health plans, salaried employment, or any
other manner of delivering health services whether on a fee-for-service or
other basis,

(D) a physician’s
association with, supervision of, delegation of authority to, support for,
training of, or participation in a private group practice with, a member or
members of a particular class of health care practitioner or professional,
or

(E) any other matter than
does not relate to the competence or professional conduct of a
physician.

(10) The term
“professional review activity” means an activity of a health
care entity with respect to an individual physician—

(A) to determine whether the
physician may have clinical privileges with respect to, or membership in,
the entity,

(B) to determine the
scope or conditions of such privileges or membership, or

(C) to change or modify
such privileges or membership.

(11) The term
“professional review body” means a health care entity and the
governing body or any committee of a health care entity which conducts
professional review activity, and includes any committee of the medical
staff of such an entity when assisting the governing body in a professional
review activity.

(12) The term
“Secretary” means the Secretary of Health and Human
Services.

(13) The term
“State” means the 50 States, the District of Columbia, Puerto
Rico, the Virgin Islands, Guam, American Samoa, and the Northern Mariana
Islands.

(14) The term
“State licensing board” means, with respect to a physician or
health care provider in a State, the agency of the State which is primarily
responsible for the licensing of the physician or provider to furnish
health care services.

(a) Annual Reports to
Congress.—The Secretary shall report to Congress,
annually during the three years after the date of the enactment of this
Act, on the implementation of this title.

(b) Memoranda of
Understanding.—The Secretary of Health and Human
Services shall seek to enter into memoranda of understanding with the
Secretary of Defense and the Administrator of Veterans’ Affairs to
apply the provisions of part B of this title to hospitals and other
facilities and health care providers under the jurisdiction of the
Secretary or Administrator, respectively. The Secretary shall report to
Congress, not later than two years after the date of the enactment of this
Act, on any such memoranda and on the cooperation among such officials in
establishing such memoranda.

(c) Memorandum of Understanding with Drug
Enforcement Administration.—The Secretary of Health
and Human Services shall seek to enter into a memorandum of understanding
with the Administrator of Drug Enforcement relating to providing for the
reporting by the Administrator to the Secretary of information respecting
physicians and other practitioners whose registration to dispense
controlled substances has been suspended or revoked under section 304 of
the Controlled Substances Act. The Secretary shall report to Congress, not
later than two years after the date of the enactment of this Act, on any
such memorandum and on the cooperation between the Secretary and the
Administrator in establishing such a memorandum.

Important Information:

Other Government Websites:

Follow:

External Link Disclaimer

You are exiting the Social Security Administration's website.

Select OK to proceed.

Disclaimer

The Social Security Administration (SSA) website contains links to websites not affiliated with the United States government. These may include State and Local governmental agencies, international agencies, and private entities.

SSA cannot attest to the accuracy of information provided by such websites. If we provide a link to such a website, this does not constitute an endorsement by SSA or any of its employees of the information or products presented on the non-SSA website.

Also, such websites are not within our control and may not follow the same privacy, security or accessibility policies. Once you visit such a website, you are subject to the policies of that site.